The recently released worksite enforcement guidelines indicate that ICE agents should not go forward in a worksite enforcement operation, "absent exigent circumstances," unless DOJ or a U.S. Attorney's Office has made a commitment or otherwise agreed to prosecute an employer.

This is great news if Secretary Napolitano has agreement from the Department of Justice that worksite enforcement is a priority, and DOJ is prepared to give those commitments at the outset of a worksite enforcement operation. One of the biggest difficulties we had during the time I was at ICE was convincing prosecutors at DOJ to bring worksite cases against employers. In some instances, DOJ attorneys required more proof for worksite cases than for other types of crimes, such as narcotics or traditional white collar crimes. On other occasions, we were promised action by the U.S. Attorney's Office that never came. In most cases, we were continually advocating for criminal cases against employers - at individual U.S. Attorney's Offices and Main Justice. This was often an uphill battle, and rarely did ICE get a commitment up front to the prosecution of the employer.

Part of this reluctance is understandable - the INA does not make employment of illegal aliens a strict liability crime. The government has to prove knowledge. As such, it is often hard to know whether the government will be able to prove knowledge at the outset of the case, and before the government interviews the key witnesses (in many cases, the aliens) and reviews all the documents. But, part of this reluctance regrettably stemmed from the failure of DOJ to make worksite enforcement a DOJ priority. At ICE, we were at the mercy of individual U.S. Attorney's Offices and their particular priorities. More often than not, that complicated and lessened the likelihood of successful prosecutions in worksite enforcement cases.